Taylor v. Mcgraw
| Citation | 760 S.E.2d 657,327 Ga.App. 654 |
| Decision Date | 19 June 2014 |
| Docket Number | No. A14A0453.,A14A0453. |
| Court | United States Court of Appeals (Georgia) |
| Parties | TAYLOR et al. v. McGRAW et al. |
OPINION TEXT STARTS HERE
John E. Bumgartner, Eric L. Bumgartner, Brunswick, for Appellant.
William J. Edgar, for Appellee.
Garrett McGraw, the 13–year–old child of Kimberly Ann McGraw, suffered serious burn injuries from a fire at a marshmallow roast at the residence of Randy and Kristy Taylor. Acting individually and as next friend of her minor child, McGraw sued the Taylors alleging that one of the Taylors' minor children threw sawdust on the fire which caused the fire to explode or flare up and burn Garrett. McGraw contends that the Taylors caused Garrett's injuries by negligently providing their minor child with unsupervised access to the fire and the combustible sawdust. We granted the Taylors' application for an interlocutory appeal from the trial court's denial of their motion for summary judgment. For the following reasons, we find that the Taylors were entitled to summary judgment and reverse.
To prevail on a motion for summary judgment, Lau's Corp. v. Haskins, 261 Ga. 491, 491, 405 S.E.2d 474 (1991). Construed in favor of McGraw, the evidence showed the following: Garrett, accompanied by his step-grandfather, was invited by the Taylors to their residence for a marshmallow roast in their back yard. Marshmallows were roasted over a wood fire in a 55 gallon metal barrel. The barrel was situated equidistant between two sheds, about five feet from each shed. A pile of sawdust was located at the back of one of the sheds about ten feet from the barrel. According to Garrett, after he and two of the Taylors' children had been roasting marshmallows for about ten minutes, Mr. Taylor told “one of his kids to get a handful of the dust and put it in the fire and for us to stand back.” Garrett said that, when the Taylor child put the sawdust in the fire, “it kind of exploded” and caused “a flareup.” At that point, Mr. Taylor and Garrett's step-grandfather went inside the Taylor residence, leaving Garrett and two of the Taylor children outside alone with the fire and the sawdust. Garrett said that he then watched as the Taylor children repeatedly threw sawdust in the fire, and that he threw sawdust in the fire “once or twice.”
Garrett was questioned at his deposition as to how he was burned by the fire.
Garrett testified that he knew fire would burn him. One of the Taylor children also testified in his deposition that, after the adults went inside the residence, he, along with his brother and Garrett, threw sawdust in the fire, which “made the fire shoot up,” and that Garrett was burned because “he was too close to the fire and the fire shot up and it got on him.”
McGraw concedes that the gravamen of her complaint was that the Taylors caused Garrett's burn injuries by negligently allowing their minor children unsupervised control of the dangerous combination of the fire in the barrel and the combustible sawdust. In support of this claim, McGraw pointed to evidence that Mr. Taylor showed the children how to use the sawdust to flare up or explode the fire contained in the barrel, and that, immediately after doing so, the Taylors allowed their children to have unsupervised control over these dangerous substances. Under these facts, McGraw contends that a duty was imposed on the Taylors to anticipate injury to another through their children's misuse of the dangerous substances in the manner they had just been shown. See Corley v. Lewless, 227 Ga. 745, 748, 182 S.E.2d 766 (1971); Jackson v. Moore, 190 Ga.App. 329, 329, 378 S.E.2d 726 (1989). We find that, even if a jury could reasonably conclude that the Taylors were negligent on this basis, their negligence was not a proximate cause of the injuries suffered by Garrett. Rather, the undisputed facts show as a matter of law that Garrett assumed the risk of being burned when sawdust was thrown into the fire.
Assumption of the risk is a complete defense and arises when, even if defendant is negligent, plaintiff himself is negligent in such a way that his own negligence is the sole proximate cause. Although issues of negligence, lack of care in avoiding the negligence of others, lack of care for one's own safety, and assumption of the risk are ordinarily not susceptible to summary adjudication, where the evidence shows clearly and palpably that the jury could reasonably draw but one conclusion the issue of assumption of risk may be determined on summary judgment.
Sayed v. Azizullah, 238 Ga.App. 642, 644, 519 S.E.2d 732 (1999) (citation and punctuation omitted).
The affirmative defense of assumption of the risk bars recovery when it is...
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Robles v. Quiktrip Corp.
...or not." Travis v. Quiktrip Corp., 794 S.E.2d 195, 199-200 (Ga. App. 2016) (citations omitted). Defendant's reliance on Taylor v. McGraw, 760 S.E.2d 657 (Ga. App. 2014) is misplaced. That case did not involve a question of whether the plaintiff voluntarily chose to engage in the risky behav......
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